im. finally accepted the position that if the Board of Review was v Feverat validly constituted, or, in other words, if it is an executive as

im. finally accepted the position that if the Board of Review was v Feverat validly constituted, or, in other words, if it is an executive as - [1931] HCA 8 - HCA 1931 case summary — Zoe

[19]

Robinson Fisher; Emily Mabel Fisher and Hilda Arnott Fisher) but with reference to the income directed to be paid by my said trustees to my child or children I direct my said trustees to hold the said income upon trust in their absolute and sole discretion to pay the whole of such income or a portion thereof only to the said child or children or to retain the whole of such income and expend it in their discretion for the maintenance and support of such child or children. 16. And immediately after the decease of any one or more of my sons or daughters I direct my said trustees to stand possessed of the one sixth part or parts of my trust fund (as the case may be) together with the sixth part or parts of the ' unapplied income ' thereof (if any) upon trust to pay and divide the same equally among the children of any such one or more of my deceased sons or daughters who shall live to attain the age of twenty-one years or being daughters marry before that age as and when such children shall respectively attain that age or being daughters marry before that age And if any one or more of my sons or daughters should die unmarried or being married die without leaving children then the share of the trust fund of that son or daughter shall revert to and become again part of my trust fund and be utilized for and by the survivors as previously directed." On 2nd April 1902 the testator made the following codicil to his will: - "I revoke that portion of my will which directs that my daughter Margaret Charlotte (wife of W. T. Bray) is to share equally with my other children as named in such will and instead thereof I direct my trustees to release the indebtedness. to me of the said Margaret Charlotte Bray as shown in my ledger at the time of my death not exceeding five hundred pounds in all Also that my trustees shall continue to hold the policies on her husband's life (which are now in my possession and upon which I am paying and have paid the premiums for some years past) for the benefit of the said Margaret Charlotte Bray and further to continue the payment of the premiums on the life policies out of the income of my estate deducting same when the policy or policies fall in. I make this stipulation that the benefit Margaret Charlotte Bray is to derive from this codicil is to be of no effect if she causes trouble to my executors or trustees

[56]

"necessary to decide between these alternatives but do nothing to aid the decision. These provisions are expressed to revoke that portion of his will which directed that a married daughter named _ Margaret Charlotte Bray was to share equally with his other children. 4 Mrs. Bray, who is living, has children who have attained twenty-one, _ and upon the death of the testator's widow, which lately occurred, it became desirable to ascertain whether the revocation of the share in the trust fund given by the will to Mrs. Bray extended to the limitation in favour of her children. If it did not so extend, _ questions would arise whether the interest so limited to them took effect in possession immediately upon the death of the testator's widow, or must await the dropping of Mrs. Bray's life ; and, if this interest did not take effect in possession during the life of Mrs. Bray, whether in the meantime the income of the revoked share should be distributed among the testator's other children, or is undisposed of, and should be distributed among his next-of-kin as on an intestacy. The trustees issued an originating summons which came before Crisp J., who decided that the limitation in favour of Mrs. Bray's children after her death was not revoked by the provision in the codicil, that under that limitation her children's interest did not fall into possession until her death and was not accelerated and that in the meantime the income of Mrs. Bray's revoked share was not distributable among the testator's other children, but was undisposed of and went to the next-of-kin. The present appeal is brought from so much of this order as determines that the interest of Mrs. Bray's children did not take effect in possession upon the death of the testator's widow but that until Mrs. Bray's death there is an intestacy as to the income. There is no cross-appeal from so much of the order as determines that the limitations in favour of Mrs. Bray's children are unrevoked. This determination is, therefore, not open for reconsideration in this Court, but must be accepted as a matter established by judicial decision. Doubtless the grounds upon which it was reached are those stated in and exemplified by Alt v. Gregory (1); Inre Whitehorne (2). It depends primarily upon the interpretation placed upon the

[72]

or daughters unmarried, or being married without leaving children, the interest which in that event shall accrue to the surviving children is described as " the share of the trust fund of that son or daughter," and the will directs that it shall revert to and become again part of the trust fund and be utilized for and by the survivors as previously directed. The direction to divide the income of the trust fund is the dominant disposition, and that requires that it should be divided equally. The discretionary power to withhold the income and to apply income in maintenance are subordinate and naturally would be read subject to the paramount direction to divide the income equally. So read, these powers have a distributive application and relate to each share of income and not indiscriminately to the income of the whole trust fund. For these reasons, I think the effect of the material provisions of the will is to create six undivided shares in the trust fund, and to limit each of them to one of the respective named children of the testator for life and after his or her death to his or her children who should attain twenty-one or being daughters marry, with an accruer in default of such children. Upon such a disposition the revocation of the interest for life of one child of the testator cannot operate to increase the amount of the undivided shares of the others. In other words, it does not operate simply to diminish the membership of a class who share the whole. On the contrary, it destroys an interest for life in a separate although undivided share of the whole. But the destruction of such an interest for life does not cause an intestacy in respect of the interest, unless it is clear that the interest limited in succession to the life interest was to take effect only upon the specified event of the death of the life tenant and was not to fall into possession on the sooner determination of the life interest. In a limitation to a donee for life and after his death upon trust for his children, or some other donee, the reference to his death whether expressed by the words "upon," or " after his death," or "from and after his decease," or otherwise, may have one of two imports. It may mean that the second donee shall take nothing until the death of the first, or it may merely show the order of the limitations through which the estate or interest is to pass. It is well established that, prima

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